Monday, February 25, 2008

Mathieu: The word "torture" does not appear in our orders. We have always spoken of interrogation as the only valid method in a police operation directed against unknown enemies...twenty-four hours...the time necessary to render useless any information furnished ... What type of interrogation should we choose? ... the one which drags on for months?

Journalist: The law is often inconvenient, colonel...

Mathieu: And those who explode bombs in public places, do they perhaps respect the law? ...it is a vicious circle...All the newspapers, even the left-wing ones wanted the rebellion suppressed. And we were sent here for this very reason. And we are neither madmen nor sadists…We are soldiers and our only duty is to win...I would now like to ask you a question: Should France remain in Algeria? If you answer "yes," then you must accept all the necessary consequences.

“Mathieu”, “France” and “Algeria” are possibly the only words that set the context for this exchange, replace these and this could be a transcript of current date. Exhibit A.

The Battle of Algiers, scripted by Franco Solinas and directed by Gillo Pontecorvo, provides insight into an important puzzle for international lawyers: the terror v. torture debate. In the war against terrorism, is it acceptable to torture suspected terrorists? If so, what about the violation of their human rights and rights under humanitarian law? If not, then what of the risk to the lives and property of others, including innocent civilians?

Article 2 of the Convention Against Torture provides: “1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” Other prescriptions include: torture must be included as a criminal offence in the domestic law of every member state (Art 4), victims of torture must be entitled to redress (Art 14), and statements made as a result of torture must not be admissible as evidence (Article 15). Torture is also prohibited by the ICCPR, the UDHR and regional conventions including the ECHR, the ACHR, and the Banjul Charter. In Filartiga, the 2nd Circuit declared that the torturer is ‘hostis humani generis, an enemy of all mankind’. In Furundzija, the ICTY recognized torture as a crime erga omnes, and the prohibition on torture as jus cogens.

Following 9/11, the Committee Against Torture, while condemning the attacks, also reminded State parties, “of the non-derogable nature of most of the obligations undertaken by them … [Articles 2, 15 and 16] are three such…whatever responses to the threat of international terrorism are adopted by the State parties…will be in conformity with [these obligations]."[1]

However, even as they cited these decisions and statement, the judges of the House of Lords in ‘A’ and others felt unable to insist that it would be unlawful for the executive arm of the government to rely upon information obtained through torture: “If under torture a man revealed the whereabouts of a bomb…, the authorities could remove the bomb and…arrest the terrorist who planted it” In other words, a judgment replete with contempt for acts of torture and confirmatory of the absolute nature of the prohibition against the same, could not yet declare information obtained through such acts worthless for all purposes. The growing incidence of terrorism is gradually carving out an (only in fact) exception to states’ commitment to refrain from torture. This is reflected in the film as well, the scenes of torture are gruesome, yet it is not possible to describe Colonel Mathieu’s argument as lacking all merit.

The context for the ‘Battle of Algiers’ is Algerian nationals’ struggle for independence from France. Algeria was a French colony for about 120 years, but the desire for greater autonomy had begun to take root towards the end of the first quarter of the 20th century. The end of the second quarter saw the formation of the Front de Libération Nationale [FLN] – the group depicted in the film - which launched the call for the formation of an Algerian sovereign state; in other words, they demanded full independence from the French. A six year ‘War of Independence’ followed, in which the Battle of Algiers was one of the major episodes. Armed revolt was the route preferred by the FLN; gradually other groups were persuaded or coerced to join cause with it. The government responded first by harsh police measures, then by bringing in the military.

Both sides were guilty of attacks on civilians and torture of captured persons. The laws of war were flagrantly violated. Though the film carries no express reference to humanitarian law, France was a party to the Geneva Conventions at the time of the Algerian war. The FLN, a non-state actor was not a party to the convention, but had been in direct contact with the ICRC throughout the war. Even so, the film indicates that there was little effort made by either side to contend with the protections afforded by the Geneva conventions:

On at least two separate occasions we see Colonel Mathieu offering a fair trial to the members of the FLN if they give themselves up without using force. The ICRC notes however that the French refused to admit that the Geneva conventions were applicable. “It did not matter to France, which drew on the full range of penal law to counter the rebellion, whether those “captured while in possession of weapons” were in line with the law of war or not…Far from being seen as instruments of the State – as in the case of international conflicts – [the Algerians] risked being given heavy sentences simply for having taken part in the fighting.”

In any case, the French made little attempt to differentiate between the “soldiers” and the civilians among the Algerian nationals; the film makes a reference to the napalm bombs used to wipe out entire villages. The film also shows that the pied-noirs, i.e. the European colonists, indiscriminately abusing all Algerian nationals for acts of violence, even as they employed Algerians in their factories and homes. The police too is seen as making little effort to collect actual evidence prior to making arrests, and in one incident an innocent Algerian road worker is arrested, ‘interrogated’ and his house and neighborhood in the Algerian quarter (the “Casbah”) bombed by the Police Commissioner and his friends as an act of revenge against the random acts of violence perpetrated by the FLN. The fate of the worker is not disclosed. According to the ICRC, though the broad policy was to bring the Algerians before magistrates’ courts, “disappearances” were widespread. The ICRC had very limited access to prisoners; film makes no mention of any ICRC presence at the detention centers.

On the Algerian side, the film faithfully showcases the actual events during the Battle of Algiers, including: guerrilla attacks by the FLN; bombing of popular civilian sites; and the general strike timed to coincide with the UN debate on Algeria. One of the most notorious incidents was the simultaneous bombing of a crowded restaurant, a milk bar and the Air France building by three women, as a reprisal against the French police’s actions in bombing the Casbah, and in restricting Algerians’ movement to and from the Casbah. The women, Hassiba Ben Bouali, Djamila Bouhired and Zohra Drif were all active members of the FLN, as were several others. Though not in this instance, in general the FLN capitalized on the fact that for reasons of cultural propriety, French soldiers would not search Algerian women for concealed weapons as they searched Algerian men.

Children also played a role in FLN operations; the character of petit Omar, who acted as the go-between for FLN leaders like Ali La Pointe and Saadi Yacef, and who was pressed into service to plant bombs for the FLN when their adult membership began to decline, is taken from real life. Omar was Yacef’s nephew and was finally killed by a French bomb, when hiding with La Pointe and Ben Bouali. Another role for children, according to the film, was to help the FLN in its drive to weed out gamblers, drug-takers, alcoholics and prostitutes, described as products of the ‘colonial’ influence: “Corruption and brutality have always been the most dangerous weapons of colonialism. The National Liberation Front calls all the people to struggle for their own physical and moral redemption -- indispensable conditions for the reconquest of independence. Therefore beginning today, the clandestine authority of the NLF prohibits the following activities: gambling, the sale and usage of all types of drugs, the sale and usage of alcoholic beverages, prostitution and its solicitation. Transgressors will be punished. Habitual transgressors will be punished by death.” One of the most gut- wrenching moments of the film is the brutal lynching of a drunk man by a group of children.

Another issue touched upon in the film is the question of choice of methods in the independence struggle. As described above, the FLN pursued a policy of armed revolt that could have been described as terrorist. However, at the time of the Algerian War, there was considerable debate on whether or not there should be a ‘freedom fighter’ exception to the definition of terrorism, such that acts of violence committed in the quest for independence would not be slotted under terrorism. During the Cold War, in most cases of anti-colonial struggle, one of the two power blocs would express support for ‘freedom fighters’; the other would condemn violence. The result was obfuscation of the permitted means to self-determination. Even today, though the period of anti-colonial struggles has come to an end, the international community has not been able to resolve the problem of separating ‘legitimate freedom fighters’ from terrorists; this has prevented the finalization of the Draft Comprehensive Convention against International Terrorism. The Security Council displays increasing unwillingness to include any exceptions to the definition of terrorism, on the other hand the Arab and African regional anti-terrorism conventions except acts performed in the course of the struggle for freedom.[2]

Another important feature is the French military’s reaction to the week long strike, including a freeze on hostilities, declared by the FLN. Through a general strike the FLN intended to showcase the popular support among the Algerians for full independence from the French; the strike was timed to coincide with the UN Debate on Algeria. The French military used it as an excuse to raid the Casbah. Despite the peaceful nature of the strike, all striking Algerians, regardless of the fact of their affiliation/non-affiliation with the FLN were treated as insurgents; participants were randomly selected, arrested and tortured in order to obtain information about the FLN.

These tactics helped the military to identify and crush the leadership of the FLN, and so win the Battle of Algiers. Another blow to the FLN’s campaign was the UN Resolution which only expressed “the hope that, in a spirit of co-operation, a peaceful, democratic and just solution will be found, through appropriate means in conformity with the principles of the Charter of the United Nations.”[3]

However, in the long run, these military tactics undermined France’s position in Algeria, as military brutalities promoted popular uprising among the Algerians some months after the battle, and accelerated the decline in international support for the French colonial government in Algeria. In 2003, the Pentagon organized a screening of the film, apparently as an attempt to think creatively about the US military’s role in Iraq. The flyer stated: “How to win a battle against terrorism and lose the war of ideas. Children shoot soldiers at point-blank range. Women plant bombs in cafes. Soon the entire Arab population builds to a mad fervor. Sound familiar? The French have a plan. It succeeds tactically, but fails strategically. To understand why, come to a rare showing of this film.”[4]

A remarkable feature of the film is its faithful and unbiased representation of the events that transpired. A major factor was the assistance Pontecorvo received from Saadi Yacef, who co-produced the film. Yacef also played himself in the film, other roles were played by Algerians, all non-actors; only one professional actor was included in the cast – Jean Martin playing Colonel Mathieu, a fictionalized character loosely based on General Jacques Massu, the commander of the French troops in Algiers. The film was shot in Algeria, using the actual locations where the incidents had occurred. Moreover, it was shot very soon after the actual events had transpired. According to Charles Paul Freund, in 1965 when internal differences broke out between different factions of the FLN, and one faction surrounded another with tanks, the people of the capital literally thought another scene was being shot for The Battle of Algiers.[5]

The film was criticized for its condemnation of torture by both General Massu and his deputy in Algiers, General Paul Aussaresses. Massu was to later regret the military’s actions in Algeria, but Aussaresses continues to maintain that these tactics had been necessary. In 2002 he published “The Battle of the Casbah”, in which he defended his use of torture. The French government subsequently tried and convicted Aussaresses for ‘justifying war crimes’.